Errors In Jury Instructions of Lesser Included Offense Cases

An offense is a lesser included offense of another for purposes of section 1159 if it meets either of the following tests: "Legal elements" test: the greater statutory offense cannot be committed without committing the lesser offense because all the elements of the lesser offense are included in the elements of the greater; "Accusatory pleadings" test: the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed in that manner the lesser offense must necessarily be committed. (People v. Clark (1990) 50 Cal. 3d 583, 636 [268 Cal. Rptr. 399, 789 P.2d 127].) It is error, however, to instruct on a lesser included offense when a defendant, if guilty at all, could only be guilty of the greater offense, i.e., when the evidence, even construed most favorably to the defendant, would not support a finding of guilt of the lesser included offense but would support a finding of guilt of the offense charged. (People v. Hawkins (1995) 10 Cal. 4th 920, 954 [42 Cal. Rptr. 2d 636, 897 P.2d 574].) Any error in instructions on a lesser included offense in a noncapital case is subject to the Watson standard of review requiring reversal only if it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of such error. (People v. Breverman, supra, 19 Cal. 4th at p. 165.)